---

51 FLRA No. 138

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF DEFENSE

ARMY AND AIR FORCE EXCHANGE SERVICE

DALLAS, TEXAS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3854

(Union)

0-AR-2692

_____

ORDER DISMISSING EXCEPTIONS

July 29, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Edward E. Hales filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator determined that the grievant had been unjustly separated during her probationary period and ordered her reinstated with backpay.

We conclude that we lack jurisdiction over the exceptions under section 7122(a) of the Statute. Accordingly, we dismiss the Agency's exceptions.

II. Background and Arbitrator's Award

The grievant was separated from employment during her probationary period. The Agency stated that the separation was a nonprejudicial action under the provisions of Army Regulation (AR) 60-21/Air Force Regulation (AFR) 147-15 (Exchange Service Personnel Policies) and was not for cause. The Union filed a grievance on her behalf claiming that she was improperly separated from employment.

At arbitration, the Agency asserted that the grievance was not arbitrable because the parties' collective bargaining agreement excludes grievances over separations during the probationary period when they are not for cause. The Union argued that the grievant was separated for cause and that, therefore, the grievance was not excluded. The Union also argued that the grievant should be reinstated because the separation was not for just cause. The Arbitrator found that the grievance was arbitrable and that the grievant's separation was not justified. As his award, the Arbitrator reinstated the grievant with backpay.

III. Exceptions

A. Agency's Contentions

The Agency contends that the award is contrary to AR 60-21/AFR 147-15 and section 7106(b)(1) of the Statute. The Agency argues that the award violates AR 60-21/AFR 147-15 because the Arbitrator applied the wrong legal standard in evaluating the grievance and because the award requires management to conduct investigations. The Agency argues that the award is contrary to management's right to determine the methods and means of performing work because the award regulates the manner in which the Agency must deal with customers.

B. Union's Opposition

The Union contends that the Agency's exceptions should be dismissed for lack of jurisdiction because the award relates to the grievant's removal.

IV. Analysis and Conclusions

We conclude that we lack jurisdiction under section 7122(a) of the Statute to resolve the Agency's exceptions to the Arbitrator's award. Section 7122(a) provides, in pertinent part:

Either party to arbitration under this chapter may file with the Authority an exception to any arbitrator's award pursuant to the arbitration (other than an award relating to a matter described in section 7121(f) of this title).

The matters described in section 7121(f) are those matters covered under 5 U.S.C. §§ 4303 and 7512 and similar matters that arise under other personnel systems.⁽¹⁾ Section 7121(e) of the Statute gives an option to certain employees who decide to challenge a matter covered under section 4303 or 7512 or similar matters arising under other personnel systems. These employees can either: (1) file a grievance over the matter under a negotiated grievance procedure (if the matter is not excluded from the scope of the procedure); or (2) appeal the matter to the Merit Systems Protection Board (MSPB) (if the employee is within the MSPB's jurisdiction) or raise the matter under whatever appellate procedures, if any, are applicable (if the employee is within another personnel system).

Section 7121(f) addresses the review of arbitration awards resolving grievances encompassed by section 7121(e). For employees in the general Federal civil service, section 7121(f) provides that, if an employee has chosen the grievance option, the resulting award has the same review as if the matter had been appealed to the MSPB. Specifically, the award is appealable to the U.S. Court of Appeals for the Federal Circuit. For employees in other personnel systems, section 7121(f) provides that, if an employee has filed a grievance over a matter similar to one covered under section 4303 or 7512, the resulting award has the same review as if the administrative appeal option, if one exists, was chosen. Under section 7122(a), the Authority is without jurisdiction to review any of these awards.

Pursuant to this statutory scheme, the Authority is deprived of jurisdiction over an award relating to an employee in the general Federal civil service when such an employee has the discretion to raise the matter covered under section 4303 or 7512 under the negotiated grievance procedure or before the MSPB, but not both. Of course, to exercise that option, the employee must have standing to bring an action to the MSPB: the individual must qualify as an employee defined in 5 U.S.C § 4303(e) for section 4303 actions, or 5 U.S.C. § 7511 for section 7512 actions.⁽²⁾ Accordingly, for the general Federal civil service, the Authority has examined the employee status of the grievant in determining whether an arbitration award relates to a matter covered under section 4303 or 7512. E.g., U.S. Department of the Army, Army Reserve Personnel Center and American Federation of Government Employees, Local 900, 34 FLRA 319 (1990) (in dismissing exceptions for lack of jurisdiction, the Authority held that the award did not relate to a matter covered under section 7512 because the grievant was not an employee as defined by section 7511).

With respect to other personnel systems, however, section 7121(e) refers to the right of employees to appeal "[s]imilar matters" without regard to whether the employee actually has an administrative appeal alternative. In these other systems employee standing or status is not an element of the right provided in section 7121(e). Therefore, we do not interpret the Statute as directing us to look beyond the specific personnel actions listed in sections 4303 and 7512 when determining whether a grievance implicates "similar" matters within the meaning of section 7121(e) and (f). Accordingly, in determining whether the Authority is deprived of jurisdiction because an arbitration award relates to a matter described in section 7121(f), we will look only to the type of action that gave rise to the grievance, and we will determine whether it is similar to any action covered under sections 4303 and 7512.

In this case, we conclude that the award relates to a matter that is similar to a matter covered under section 7512. The grievant in this case is employed in another personnel system. Army and Air Force Exchange Service and American Federation of Government Employees, Region Council 236, 33 FLRA 815 (1988) (employees of the Agency are in another personnel system within the meaning of section 7121(f) of the Statute). The Agency separated the grievant from employment. Clearly, the grievant's separation is a matter similar to a section 7512 removal. In both, the employer takes an action to terminate an individual's employment. Thus, we dismiss the Agency's exceptions for lack of jurisdiction.⁽³⁾

V. Order

The Agency's exceptions are dismissed.

APPENDIX

5 U.S.C. § 4303(e) provides:

(e) Any employee who is--

(1) a preference eligible;

(2) in the competitive service; or

(3) in the excepted service and covered by subchapter II of chapter 75,

and who has been reduced in grade or removed under this section is entitled to appeal the action to the Merit Systems Protection Board under section 7701.

5 U.S.C. § 7511(a)(1) defines employee as:

(A) an individual in the competitive service--

(i) who is not serving a probationary or trial period under an initial appointment; or

(ii) who has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less;

(B) a preference eligible in the excepted service who has completed 1 year of current continuous service in the same or similar positions--

(i) in an Executive agency;

. . . .

(C) an individual in the excepted service (other than a preference eligible)--

(i) who is not serving a probationary or trial period under an initial appointment pending conversion to the competitive service; or

(ii) who has completed 2 years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to 2 years or less[.]

---

---

---

FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. 5 U.S.C. § 4303 covers removals and reductions-in-grade for unacceptable performance. It does not apply to the removal or reduction-in-grade of certain employees including probationary competitive service employees. 5 U.S.C. § 4303(f). 5 U.S.C. § 7512 covers removals, suspensions for more than 14 days, reductions in either grade or pay, and furloughs for 30 days or less.

2. Sections 4303(e) and 7511 are set forth in an Appendix to this decision. Basically, the following employees are entitled to appeal section 4303 or 7512 actions to the MSPB: (1) nonprobationary, competitive service employees; (2) preference-eligible, excepted service employees with more than 1 year of current continuous service; and (3) nonpreference-eligible, excepted service employees with more than 2 years of current continuous service.

3. Member Armendariz notes that, as this case concerns only whether the subject matter of the award concerns a "matter described in section 7121(f)" of the Statute, it does not involve the further question of whether the award "relat[es] to" such a matter, which was addressed in his dissent in American Federation of Government Employees, Local 2986 and U.S. Department of Defense, National Guard Bureau, The Adjutant General, State of Oregon, 51 FLRA No. 126 (1996).

---